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Otero County at odds with BLM over ownership of road in Orogrande

County officials say they plan to open the road Tuesday for a mining company; BLM hints that it may be a federal violation if they do

Alamogordo Daily NewsBy Duane Barbati, Staff Writer

Posted:
01/12/2013 09:06:11 PM MST

Click photo to enlarge

Otero County plans to open A010 road on Tuesday. It will provide access for Gulf Coast Mining trucks to haul iron ore from the Iron Duke mine just north of Orogrande. Gulf Coast wants to clean off the tailings from previous mining operations then crush the rock and ship the iron ore for transportation to China. The foreground shows the leftover tailings with Gulf Coast's crushing operation in the background.

Otero County workers are scheduled to make improvements to a road just north of Orogrande and open it Tuesday for Gulf Coast Mining so the company can haul iron ore from the Iron Duke mine.

But Bureau of Land Management officials say Otero County needs to file the necessary forms to make the improvements and open the road.

Both county and BLM officials want to work together on opening the road, A010, but there is a discrepancy as to who has the right-of-way and whether the county or BLM owns it.

County Commissioner Ronny Rardin said he has maps from the 1940s and 1950s indicating that A010 is an improved and maintained roadway, which leads him to believe the county and Gulf Coast Mining have the right to use the road and make minimal improvements to it.

Rardin said he obtained the maps from New Mexico State University in Las Cruces. He said the maps show a direct route from U.S. Highway 54 to the mining site.

BLM has provided a map to the county that shows the road beginning at U.S. Highway 54 near the northern border of Orogrande and looping back to the highway a little further north.

Rardin said he believes BLM's map is incorrect because there's evidence of a road, but it ends without access to the mining site and essentially landlocks access to it.

"We can find our roadway indicated on the 1947 and 1955 maps from NMSU," he said. "We believe it's our road. We're not widening the road. We want to grade the road for Gulf Coast's 18-wheel trucks to haul iron ore from the mine.

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They're just cleaning up the site. Gulf Coast is not doing any deep mining. They're cleaning up the tailings from previous mining. Gulf Coast is going to give us the leftover product from crushing the tailings, or rock, to use to fill in the ruts in the road. They're giving it to us for free."

Road A010 is considered by the county to be a Revised Statue 2477 road. In 1866, Congress passed a law that gave public entities, counties or state governments the right to construct roads on federal lands. It was an open invitation to counties and states to construct roads on federal lands, and upon construction they received a right-of-way.

In 1976, Congress repealed the law and closed the deal for public entities to build roads on federal lands subject to existing rights. If a county or state had an existing R.S. 2477 right-of-way, it still exists. But Congress failed to provide a way for counties to reconcile what the county or state believes is an R.S. 2477 road and what the federal government believes exists as an R.S. 2477 road.

Rardin said the county is adamant about opening the road for Gulf Coast Mining because of the estimated 100 to 150 potential jobs being brought to Otero County.

Gulf Coast currently has about 10 employees working at the Iron Duke mine site.

"We want those jobs so bad in our county because we need them," Rardin said.

Last February, Gulf Coast Mining was approved for a minimal impact new mining operation permit for the Iron Duke mine from the state Energy, Minerals and Natural Resources Department, but the county has not received clearance through the BLM to improve the road.

But Rardin said the mining company has a "patent" right-of-way to use that road to get to its mine. According to original mining grants from the 1800s, the mining company, he said, has the right to access property in whatever way it needs.

"We've been battling for about 18 months," Rardin said. "The federal agency (BLM) refuses to recognize the patent and grants. We've got to do something because they're out (at the mine) working. They won't let them cross this federally managed property. That road is owned by the county. We're going to open the road Tuesday because everyone has the right to use roads owned by us."

Bill Childress, district manager for BLM's Las Cruces office, said BLM and Otero County have been talking and attempting to resolve the issues of the road.

"We require a right-of-way," Childress said. "We've communicated it to the county. They need to file a right-of-way application. We would need to process that initially to give them a right-of-way before we would feel comfortable with them abating or improving the road."

He said the county will need to fill out a form, then BLM and the county would determine who covers the cost or the time to make the improvements to the road.

Childress said BLM could internally prepare some of the documents and the cost, which would include doing a cultural, wildlife and threatened species surveys, and also prepare whatever appropriate level of environmental documentation.

He said in this case, it would most likely be an environmental assessment.

Childress said once BLM has determined what issues are out there, "We would then determine if we would need to do some mitigation to any resources that we discovered out there before the county moved forward with any improvement or grading of the road.

"We would issue them a right-of-way permit for a period of time," he said. "Usually our right-of-ways are up to 30 years."

Childress said BLM has a variety of options if the county goes ahead with their plans to open the road.

"I wouldn't say which options we would pursue," he said. "We have options to assess violations or blading a route without a right-a-way. There's a combination of administrative, civil or potentially criminal actions for a violation of blading a route without getting a right-of-way. We don't know which way we would go. It might have everything to do with the level of maintenance that took place on the ground."

Childress said BLM would prefer to work with the county in going through the process of getting a right-of-way from our agency.

Rardin said he would prefer to work it out with BLM, but believes the road belongs to Otero County because, he said, A010 is an R.S. 2477 road.